The 17th January 2018 marked another low point in our ongoing prisons crisis when the Chief Inspector of Prisons, Peter Clarke, invoked the urgent notification process for the first time — requiring the Minister of Justice to develop and formally produce an action plan to address serious concerns at HMP Nottingham within 28 days.
But what is the urgent notification process and how did it come about?
A persistent Chief Inspector
Eleven months ago (when Liz Truss was Justice Secretary) on 17 February 2017, the government published the Prisons and Courts Bill (2017) which covered four main areas including as a top priority: Prison safety and reform. The Bill put forward a:
new framework and clear system of accountability for prisons. It will enshrine into law that a key purpose of prison is to reform and rehabilitate offenders, as well as punish them for the crimes they have committed.
A key element of the Bill was the award of more statutory powers to the Prison Inspectorate including (paragraph 5 (C) 3) that where the Chief Inspector had “significant concerns” about a prison, s/he would issue the Secretary of State with an urgent notification who:
… must publish a response to an urgent notification within 28 days beginning with the date on which the Chief Inspector published the notification.
The Bill was seen as evidence of the government’s commitment to prison reform. However, following the summer 2017 general election, the Bill was then dropped from the Queen’s Speech on 21 June 2017 with the government promising to bring forward new legislation solely on court modernisation. This was interpreted by many commentators in two ways: firstly, a reflection that parliamentary time was going to be almost entirely taken up by Brexit, and, secondly, as a clear indication that the government was reducing its commitment to prison reform.
The Chief Inspector was furious, and issued a public statement in which he described the move to drop the bill as a missed opportunity:
Statement from HM Chief Inspector of Prisons on the Queen’s Speech. pic.twitter.com/TkZdGHNvfX
— HMI Prisons (@HMIPrisonsnews) June 21, 2017
Mr Clarke’s inspectors were continuing to find a prison service in disarray; inspection after inspection revealed a deteriorating prison estate, escalating levels of violence and worsening prison regimes. He pursued the issue of urgent notifications directly with the Justice Secretary, now David Lidington, until on 30 November 2017, the MoJ agreed to establish the process outside of primary legislation.
How do urgent notifications work?
The process is relatively straightforward. When the Chief Inspector finds “significant concerns with regard to the treatment and conditions of prisoners”, s/he writes to the Secretary of State to invoke formally the urgent notification process. In the case of Nottingham (see the urgent notification letter here), Peter Clarke set out an indication of the evidence that prompted him to issue the UN, his rationale for doing so and a note summarising all the main judgements arising from the inspection, focusing on the issues which require improvement.
Decisions to invoke the UN process can include any or all of seven different factors:
- Poor healthy prison test assessments;
- The pattern of the healthy prison test judgements;
- Repeated poor assessments;
- The type of prison and the risks presented;
- The vulnerability of those detained;
- The failure to achieve recommendations; and
- The inspectorate’s confidence in the prison’s capacity for change and improvement.
In the case of Nottingham, the Chief Inspector cited the following issues in “a story of dramatic decline”:
- Safety was poor (the lowest grading) in inspections in February 2016 and had not improved;
- Widespread failings;
- Very high and rising levels of self-harm (including eight suicides in the last two years);
- Failing to respond to inspection findings – only 12 of 48 previous recommendations had been achieved; and
- Lack of confidence of prisoners in staff to get things done (despite a good staffing level).
As you can see from the official graphic below, the MoJ is required to develop an action plan which the Secretary of State must publish within 28 days:
Following this initial plan, HMIP will re-inspect and a longer term improvement plan is to be put in place. The Chief Inspector will publish an annual update on the status of all Urgent Notification prisons.
We now need to wait and see — both the impact of the urgent notification on HMP Nottingham and how many further UNs are issued over the coming months.
Update – Nottingham report published
On 16 May 2018, 4 months after the Urgent Notification was issued, the HMIP report into Nottingham prison was published. Commenting on eight apparent self-inflicted deaths between inspections in February 2016 and January 2018, (there was a ninth in the weeks after the most recent visit), the Chief Inspector asked a spine-chilling question:
You can see the MoJ’s action plan to respond to the unacceptable conditions of HMP Nottingham here, it was published on 14 February 2018, exactly 28 days after the urgent notification, as required by the legislation.
Update – HMP Exeter subject to 2nd Urgent Notification
On 31 May 2018, the Chief Inspector wrote formally to Justice Secretary David Gauke to tell him safety at HMP Exeter was “unequivocally poor”, prompting him to invoke the Urgent Notification (UN) protocol, under which the Justice Secretary agrees to take personal responsibility for driving improvements at a prison identified by the Chief Inspector as suffering from significant problems, particularly relating to safety.
It is only the second time the protocol, which came into force in November last year, has been used. A similar notification was issued over the “fundamentally unsafe” HMP Nottingham in January 2018.
Mr Gauke has 28 days from 30 May to respond, also publicly, explaining how the Ministry of Justice and HM Prison and Probation Service (HMPPS) plan to improve HMP Exeter.
An unannounced inspection of HMP Exeter took place between 14 and 24 May 2018. Mr Clarke told Mr Gauke the principal reasons for invoking the UN were that “safety in the prison has significantly worsened in many respects” since the previous inspection in August 2016; and the prison had therefore attracted the lowest possible HMI Prisons grading of ‘poor’ for safety. Mr Clarke added:
There have been six self-inflicted deaths, five of which were in 2017. Despite some creditable efforts to implement recommendations from the Prisons and Probation Ombudsman following those deaths, the overall level of safety at HMP Exeter is unequivocally poor.
Inspectors made some troubling findings:
- Self-harm during the six months before the inspection was running at a higher rate than in any similar prisons. It had risen by 40% since the last inspection.
- Assaults against both prisoners and staff were among the highest inspectors had seen, and use of force by staff was inadequately governed.
- Illicit drugs were rife and nearly a quarter of prisoners tested positive for drugs.
- Living conditions for too many prisoners were unacceptably poor.
In concluding his letter, Mr Clarke told Mr Gauke:
The senior management team that is currently in place at HMP Exeter is largely the same as at the last inspection in 2016. The failure to address the actual and perceived lack of safety, and the issues that contribute to both, is so serious that it has led me to have significant concerns about the treatment and conditions of prisoners at HMP Exeter and to the inevitable conclusion to invoke the UN protocol.